Amendment 9: Voters face decision on electronic privacy

Electronic privacy will be one of the measures voters will have to decide on during the Aug. 5 primary.

Amendment 9 will ask voters to add “electronic communication and data” to the Missouri Constitution with items that must require a warrant before law enforcement can access or take a person’s electronic data. While supporters of the amendment believe the proposal will protect voter’s private lives, opponents say the amendment is vague and will have no positive impact.

The question voters will see states: “Shall the Missouri Constitution be amended so that the people shall be secure in their electronic communications and data from unreasonable searches and seizures as they are now likewise secure in their persons, homes, papers and effects?”

Current Missouri law doesn’t include “electronic communications and data” as items that require a warrant. The U.S. Constitution states that “their persons, houses, papers and effects” are protected from an unreasonable search and seizure - electronic data isn’t included in any of the language. However in late June, the U.S. Supreme Court ruled that police may not generally search an arrestee’s cell phone without a warrant.

Supporters of Amendment 9 believe the current state and national law is open to interpretation and said the amendment would be a message to the government that they can’t access private information without reason.

The American Civil Liberties of Missouri and ACLU National are among the supporters of Amendment 9.

Jeffrey Mittman, executive director of the ACLU of Missouri, stated that citizens are free to go, talk and read anything they want online.

“Our laws have not kept pace with new technologies,” Mittman said. “Voting ‘yes’ simply adds ‘electronic communications and data’ to our state constitution, ensuring that the government must have a warrant before it can rummage through the intimate details of our private lives online.”

He continued to state that people shouldn’t have to worry if the government will see and misinterpret their searches.

“America should be a place where citizens are free to talk to whomever they want, go where they want, and read what they want online without worrying that the government will see and misinterpret this information,” he said.

While opposition to the proposed amendment don’t believe misinterpretation is currently a problem, they do believe that adding the amendment may be too vague and do more harm than good.

Mo. State Sen. Maria Chappelle-Nadal (D-014) stated that adding “vague language” to the Missouri Constitution could be more of a problem rather than a solution.

“There are definitely some issues regarding Amendment 9; mainly that inserting this kind of vague language into the Missouri Constitution could hamstring the courts when there may be more nuance required in interpreting what is ‘private communication,’” Chappelle-Nadal said.

“Some concerns have been raised over the unintended consequences this amendment might have, especially the possibility of making it more difficult for law enforcement to pursue cyber crimes such as sex trafficking and child pornography.”

Chappelle-Nadal believes that the court system is equipped to handle its own “complicated nature” not “broad, sweeping constitutional amendments.”

She also questioned if Amendment 9 was approved, it may not be enforceable against a federal law enforcement agency given The Supremacy Clause — “The Constitution is the supreme law of the land. If a state law or constitution contradicts a constitutional federal law, state judges are required to uphold the federal law.”

The Southwest Missouri Democrats are not actively for or against a passage of Amendment 9, after split results during organizational vote on the issue. However, the group is unsure if the amendment is useful due to “vague” language.

Krista Stark, executive director for SWMO Democrats, said, “We do not object to protections to electronic devices, but we do in general object to vaguely worded Constitutional Amendments. This can cause both problems and cost in the future as the legislature and the courts hammer our vague legislation.”

Stark also believes given the Supreme Court ruling, the passage of Amendment 9 “will have no impact on voters.”